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Moments ago, President Donald J. Trump nominated Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the U.S. Supreme Court vacancy left after Justice Antonin Scalia passed away last year.

Scalia famously wrote the landmark Second Amendment opinion of D.C. v. Heller.

According to NPR's Nina Totenberg,

Gorsuch, 49, is considered a cerebral proponent of "originalism," the idea that the Constitution should be interpreted as the Founding Fathers would have more than 200 years ago, and of "textualism," the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law. The Colorado native is Ivy League-educated, and while in undergraduate school at Columbia University, co-founded a newspaper aimed at rebutting what he considered the dominant liberal and "politically correct" philosophy on campus. A graduate of Harvard Law School, he also earned a doctorate in legal philosophy at Oxford University, where he studied as a Marshall scholar.

And earlier today, Ramesh Ponnura wrote at National Review that Gorsuch is

a well-respected conservative whose legal philosophy is remarkably similar to that of Antonin Scalia, the justice he will replace if the Senate confirms him. He is, like Scalia, a textualist and an originalist: someone who interprets legal provisions as their words were originally understood.

Trump's nomination has all but guaranteed that gun rights lawsuits will once more be in play at the Supreme Court level in the near future.

Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case. In United States v. Capps, 77 F.3d 350 (10th Cir. 1996), this court considered 18 U.S.C. §§ 922(g) & 924(a) and their collective rule forbidding felons from keeping guns, ultimately holding that "the only knowledge required for a [criminal] conviction is knowledge that the instrument possessed is a firearm." Id. at 352-53 (quotation omitted). In the case before us, Mr. Games-Perez concedes he knowingly possessed a firearm but protests that he had no idea he was a convicted felon. In light of Capps this is an easy case and we must affirm the conviction because Mr. Games-Perez's protests, whatever their merit, are beside the point. As my colleagues rightly observe, it matters not at all under Capps whether Mr. Games-Perez ever knew about his felon status. But just because our precedent indubitably commands this result doesn't mean this result is indubitably correct.

The first of Capps's several problems is perhaps the most apparent but least consequential. Should a defendant try to disprove knowledge of his felony status, Capps says there is a "vast difference" between a lack of knowledge caused by a mistake of fact and one caused by a mistake of law. Capps, 77 F.3d at 353. But trying to distinguish what qualifies as a mistake of fact rather than one of law is a weary and wasteful business. In describing this mistaken mess, Professor Wayne LaFave got it just right:

"No area of the substantive criminal law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact or law.... In actuality, the basic rule is extremely simple: ignorance or mistake of fact or law is a defense when it negatives the existence of a mental state essential to the crime charged.... Instead of speaking of ignorance or mistake of fact or law as a defense, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law."

1 Wayne LaFave, Substantive Criminal Law § 5.6(a), at 394-95 (2d ed. 2003); see also Model Penal Code § 2.04(1). Exactly so. Either a mistake "of law" or one "of fact" can preclude a criminal conviction so long as the mistake negates the mens rea required for the offense in question.

Moving a step closer to the heart of the problem, Capps's walkabout in the land of mistakes turns out to be needless. After (and before) talking about the relative importance of a defendant's mistake of law or fact concerning his felony status, Capps unambiguously holds that a defendant's knowledge of his felony status is inessential to secure a conviction. Id. at 352-53. So all its discussion about a defendant who mistakes his felon status either as a matter of law or fact isn't just mistaken. It is simply neither here nor there.

And this takes us to the nub of the matter. Capps's holding — that the government doesn't have to prove a defendant knew he was a felon — simply can't be squared with the text of the relevant statutes. Section 922(g)(1) makes unlawful the possession of a gun when three elements are met — (1) the defendant was previously convicted of a felony, (2) the defendant later possessed a firearm, and (3) the possession was in or affecting interstate commerce. But § 922(g) doesn't send anyone to prison for violating its terms. That job is left to § 924(a)(2), which authorizes prison terms for "[w]hoever knowingly violates" § 922(g). Despite this, Capps reads the word "knowingly" as leapfrogging over the very first § 922(g) element and touching down only at the second. This interpretation defies linguistic sense — and not a little grammatical gravity. Ordinarily, after all, when a "criminal statute ... introduces the elements of a crime with the word `knowingly,'" we "apply[] that word to each element." Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 1891, 173 L.Ed.2d 853 (2009) (emphasis added).

Neither can I see a way around the problem. To be sure, statutory mens rea requirements are not always read to apply to "jurisdictional" elements like the final, interstate commerce element in § 922(g). But, just as surely, that rule of interpretation supplies courts with no license to ignore the applicability of § 924(a)'s mens rea requirement to § 922(g)'s first — plainly essential, not merely jurisdictional — element. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 72 & n. 3, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); United States v. Prince,647 F.3d 1257, 1267-68 (10th Cir.2011).

Nor is this a case where some other complicating feature of statutory context suggests that § 924(a)'s mens rea requirement might apply only to the firearm possession element. See Flores-Figueroa, 129 S.Ct. at 1895 (Alito, J., concurring). This isn't, for example, a situation where "knowingly" begins a long statutory phrase containing several elements and a reasonable question arises how far into the thicket the "knowingly" adverbial modifier extends. If the statute before us had said "whoever knowingly possesses a firearm after being convicted of a crime," it might be possible to argue that "knowingly" modifies only "possesses a firearm" and not the later prepositional phrase, "after being convicted of a crime." But that's just not the grammar we face here. Here, Congress gave us three elements in a particular order. And it makes no sense to read the word "knowingly" as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.

To be fair to Capps, it rested its holding on the Fourth Circuit's majority opinion in United States v. Langley, 62 F.3d 602 (4th Cir.1995) (en banc). So maybe we should turn there for some answer to Capps's plain language problem. But doing so only reveals another dead end. As it turns out, the Langley majority and dissent wage an epic battle not on the field of plain language but congressional intent. And their extensive back-and-forth barrages ultimately serve to illustrate only that the relevant legislative history is stocked with ample artillery for everyone. The Langley fight is hard fought, each inch of the historical terrain is heavily contested, but in the end almost no ground is taken by either side. Both offer entirely plausible readings of the legislative record.

Worse still, in the heat and smoke generated in Langley's battle over congressional intent an elemental rule of interpretation gets lost. Whatever Congress's intent may have been, any statutory interpretation must take reasonable account of the language Congress actually adopted. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.") (internal quotation marks omitted). Yet, Langley nowhere pauses to explain how it might be possible as a matter of plain language to read "knowingly" as modifying only the second of § 922(g)'s enumerated elements, skipping the first element altogether.

In fact, this result isn't just plausible, it is presumptive. The Supreme Court has long held that courts should "presum[e]" a mens rea requirement attaches to "each of the statutory elements that criminalize otherwise innocent conduct," and following this rule the Court has often enforced a mens rea requirement even when none appears in the statutory language. X-Citement Video, 513 U.S. at 72, 115 S.Ct. 464; see also Staples, 511 U.S. at 610-12, 114 S.Ct. 1793; Morissette v. United States, 342 U.S. 246, 250-53, 72 S.Ct. 240, 96 L.Ed. 288 (1952). How can it be that courts elsewhere read a mens rea requirement into statutory elements criminalizing otherwise lawful conduct, yet when Congress expressly imposes just such a mens rea requirement in §§ 922(g) and 924(a) we turn around and read it out of the statute? Here again, Capps offers no good explanation for its topsy turvy result.

At the end of all this one might ask if Capps's error makes any difference to the outcome of this particular case. After all, as the majority notes, there's a certain amount of evidence suggesting that Mr. Games-Perez was aware he had a felony conviction. But even assuming some sort of harmless error analysis applies to conditional guilty plea appeals like this one, see United States v. Rivera-Nevarez,418 F.3d 1104 (10th Cir.2005) (majority and dissent discussing this question), there's simply not enough evidence to call the error here harmless. While it's true that Mr. Games-Perez signed two documents acknowledging he was a felon, the state court explicitly told him otherwise: "if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony and instead granted the privilege of a deferred judgment." R. Vol. 1 at 32 (emphasis added). Then, after accepting Mr. Games-Perez's plea, the court returned to and reemphasized the point, adding "I am not entering judgment of conviction at this time, hopefully, I never will." Id. at 38. Surely in these circumstances a triable question exists whether or not Mr. Games-Perez had the requisite knowledge that his deferred judgment was a felony conviction.

I recognize that precedent compels me to join the court's judgment. But candor also compels me to suggest that we might be better off applying the law Congress wrote than the one Capps hypothesized. It is a perfectly clear law as it is written, plain in its terms, straightforward in its application. Of course, if Congress wishes to revise the plain terms of § 922(g) and § 924(a), it is free to do so anytime. But there is simply no right or reason for this court to be in that business.